BUILDING AND
CONSTRUCTION INDUSTRY IMPROVEMENT (CONSEQUENTIAL AND TRANSITIONAL)
BILL 2005

SUPPLEMENTARY EXPLANATORY
MEMORANDUM

Amendments to be Moved on
Behalf of the Government

(Circulated by authority of
the Minister for Employment and Workplace Relations, the Honourable
Kevin Andrews MP)

AMENDMENTS TO THE BUILDING AND CONSTRUCTION
INDUSTRY IMPROVEMENT (CONSEQUENTIAL AND TRANSITIONAL) BILL 2005

OUTLINE

The proposed amendments to the Building and
Construction Industry Improvement (Consequential and Transitional)
Bill 2005 (the C&T Bill) will accommodate proposed amendments
to the substantive Building and Construction Industry Improvement
Bill 2005 (BCII Bill).

The key amending provisions will amend
commencement information, application and transitional provisions,
and insert provisions dealing with records of the Royal Commission
into the Building and Construction Industry.

FINANCIAL IMPACT STATEMENT

The proposals in these amendments are budget
neutral.

NOTES ON AMENDMENTS

Item No. 1 - Clause 2, page 2 (table item 2)

Item No. 2 - Clause 2, page 2 (table item 3, column
1)

Item No. 3 - Clause 2, page 2 (table item 4)

Item No. 4 - Clause 2, page 2 (table item 6)

Item No. 5 - Clause 2, page 2 (end of table)

1.1 Items 1 to 5
will amend commencement information in subclause (1) of the C&T
Bill.

1.2
Section 4, subsections 7(1), (3) and (9) will be taken to have
commenced on 9 March 2005.

1.3
Sections 8, 9, 11 and 12 and subsection 7(2) commence on the day on
which the C&T Act receives Royal Assent.

1.4
Schedule 1, items 2 to 42 will commence on the day the C&T Act
receives Royal Assent.

1.5
Schedule 1, items 53, 54 and 56, will be taken to have
commenced on 9 March 2005.

1.6
Schedule 3 will commence on the day on which the C&T Act
receives Royal Assent.

Item No. 6 - Clause 3, page 3 (line 2)

Item No. 7 - Clause 3, page 3 (line 2)

Item No. 8 - Clause 3, page 3 (after line 5)

2.1 Items
6 to 8 will amend clause 3 of the C&T Bill.
Clause 3 provides that ‘each Act’ specified in a
Schedule to the C&T Bill is amended or repealed as set out in
the relevant items in that Schedule, and that any other item
operates according to its terms. The amendment will extend
operation of clause 3 to include ‘each
regulation’. The amendment will additionally provide
that the amendment of any regulation does not prevent the
regulation, as so amended, from being amended or repealed by the
Governor-General.

Item No. 9 - Clause 7, page 4 (after line 11)

Item No. 10 - Page 4, at the end of Part 2 (after
line 17)

Item No. 11 - Page 4, at the end of Part 2 (after
proposed clause 8)

3.1 Items 9, 10 and 11 will
amend the C&T Bill by inserting application and transitional
provisions for sections 79, 176 and 241A of the Building and
Construction Industry Improvement Act 2005 (the BCII Act).

3.2 Section 79 of the BCII
Act will apply to building industrial action that occurs after the
commencement of that section, regardless of when the course of
action began.

3.3
Section 176 of the BCII Act will apply to contracts entered
into at any time, whether before or after the commencement of that
section. Section 176 allows actions that could
previously only be brought in the Federal Court to also be brought
in the Federal Magistrates’ Court. The intention of
section 176 is merely to improve procedures for access to
relief in respect of unfair contracts. It does not alter the
substantive rights or obligations of the parties in any way.

agreements) unenforceable. The proposed
application provision preserves the enforceability of project
agreements made under State industrial laws before the commencement
of section 241A for three years after commencement. It merely
prevents these kinds of agreements from being rendered
unenforceable by virtue of only section 241A and does not
grant enforceability to an agreement that would otherwise be
unenforceable.

Item No. 12 - Page 4, at the end of Part 2 (after
proposed clause 9)

3.5 Item 12 will amend the
C&T Bill by inserting proposed clause 11, that provides
for the transfer of custody of certain records of the Royal
Commission into the Building and Construction Industry (the Royal
Commission) to the Australian Building and Construction
Commissioner (ABC Commissioner).

3.6
Subclause (1) provides that original records of the Royal
Commission, held by the Commonwealth pursuant to subsection 22(2)
of the Archives Act 1983 (Archives Act), are transferred
into the custody of the ABC Commissioner as if the ABC Commissioner
received them in accordance with a direction pursuant to subsection
22(3) of the Archives Act. The clause will facilitate the
transfer of records and overcome delays that would arise from
procedural processes normally attaching to such a direction.

3.7 The
records to be transferred to the ABC Commissioner are limited to
those that were produced to the Royal Commission and are deemed to
be records of the Commonwealth under subsection 22(2) of the
Archives Act. This excludes records that were produced by
persons employed or retained by the Royal Commission. This
ensures that internal Royal Commission records are not transferred
to the ABC Commissioner.

3.8 The
transfer is to take place as soon as practicable following
commencement of this provision (subclause (2)).

3.9
Subclause (3) deals with the manner in which records must be dealt
with by the ABC Commissioner. It allows for records owned by
persons other than the Commonwealth to be returned to those persons
(paragraph (b)) and ensures that where such records are returned, a
copy of the record is provided to the Australian Archives
(paragraph (c)). A sunset clause ensures that the custody of
all relevant records is transferred to the Australian Archives
within 5 years of the commencement of this section (paragraph
(d)).

3.10 Subclause (4)
provides for the transfer to the ABC Commissioner of an electronic
copy of the electronic version of records of the Royal Commission,
where the Commonwealth has an electronic version. The
transfer is not contingent on whether the Commonwealth is able to
deliver the original of the record under subclause (1). This
deals with the possibility that the record is no longer held by the
Commonwealth.

3.11 The electronic
copy of the electronic version provided to the ABC Commissioner
will include any objective coding data attached to that
record. Objective coding data is objective information such
as the author and addressee of the record, the date of the record,
and the nature of the record. This data is being provided to
assist with the effective management of the records provided to the
ABC Commissioner. Any subjective information attached to the
record, such as commentaries or notes about the content of the
records made by persons employed or retained by the Royal
Commission will not be made available to the ABC Commissioner.

3.12 Custody of the
electronic version of the records (including both objective and
subjective coding data) remains with the Commonwealth.

3.13 Subclause (5)
enables regulations to be made that would allow the further
transfer of records that remain in the possession of the
Commonwealth. This transfer could involve the ABC
Commissioner being given either custody of the records, or access
to the records (or electronic copies of the records).

3.14 Subclause (6)
specifies the way in which the ABC Commissioner is taken to have
received the records that are transferred to it. This ensures
that the transfer is taken to be for the purpose of the ABC
Commissioner performing its functions and powers. This
clarifies the way in which the ABC Commissioner can use and deal
with the transferred records. Paragraph (b) ensures that the
transferred records are afforded the same confidentiality as
information collected by the ABC Commissioner in the course of its
operations. However, to the extent that the transferred
records had already been lawfully made public by other means, their
status would not be affected by this subclause.

3.15 Subclause (7)
specifies that the ABC Commissioner is able to retain the
transferred records for as long as the ABC Commissioner considers
it desirable for the purpose of exercising powers and functions of
office. This will allow the ABC Commissioner to resist
requests from the owners of the records for their return, if this
is considered desirable for the purpose of the ABC
Commissioner’s powers and functions. However, the
owners will still be able to access the records and make
copies. This subclause will not prevent the owners of records
or other parties from initiating court action to retrieve the
records.

3.16 Subclause (8)
ensures that the protection for individuals against
self-incrimination that would usually apply to records of a Royal
Commission continues to apply to the transferred records.
This means that the ABC Commissioner’s use of the records
against the individuals that provided them to the Royal Commission
would be subject to section 6DD of the Royal Commissions Act
1902 . Section 6DD of the Royal Commissions Act
1902 makes inadmissible the fact of the production of the
document or other thing.

3.17 Subclause (9)
ensures that any rights to claim legal professional privilege over
the transferred records continue to exist.

3.18 Subclause (10)
defines terms for the purposes of this clause.

Item No. 13 - Page 4, after proposed clause 11

4.1 Item 13 will insert a new
part entitled ‘Part 3 - Miscellaneous’, and
clause 12 into the C&T Bill. This clause allows
regulations to be made for the purposes of the C&T Act.

Item No. 14 - Schedule 1, page 5 (after line 8)

Item No. 15 - Schedule 1, page 5 (after proposed item
18)

Item No. 16 - Schedule 1, page 5 (after proposed item
19)

Item No. 17 - Schedule 1, page 5 (after proposed item
21)

5.1 Items
14 to 17 will amend Schedule 1 to the C&T Bill to provide
for the insertion of references to the BCII Act into the relevant
provisions of the Workplace Relations Act 1996 .
Schedule 1 proposes amendments to the WR Act
consequential upon the commencement of the BCII Act.

Item No. 18 - Schedule 2, page 7 (before line 4)

6.1 Item 18 will amend
Schedule 2 to the C&T Bill. Schedule 2 proposes
amendments to Commonwealth legislation other than the
WR Act that are consequential to the enactment of the BCII
Act.

6.2 The proposed amendment will
amend paragraph (a) of Schedule 1 to the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act) to insert a
reference to the BCII Act. This amendment will exempt
decisions made under the BCII Act from the operation of the ADJR
Act. This is consistent with the existing exemption for the
WR Act and its predecessors.

Item No. 19 - Page 7 (after line 8), at the end of the
Bill

7.1 Item 19 will insert a new
schedule entitled ‘Schedule 3 - Amendment of the
Financial Management and Accountability Regulation
1997’. The Schedule will amend the Financial
Management and Accountability Regulations 1997 , to prescribe
the Office of the Australian Building and Construction Commissioner
as a prescribed agency for the purposes of the Financial
Management and Accountability Act 1997.